Golden Arrow Bus Services (Pty) Ltd v Minister of Transport and Others

• Jurisdiction: South Africa
• Judge: Binns-Ward AJ
• Judgment Date: 30 January 2009
• Citation: 2009 (5) SA 322 (C)
• Docket Number: 1277/2009
• Hearing Date: 30 January 2009
• Counsel: JA le Roux SC (with A Smalberger) for the applicant. JC Heunis SC (with G Oliver) for the first and third respondents. IAM Semenya (with AL PlattP for the respondent. No appearance for the fourth respondent.
• Court: Cape Provincial Division

Binns-Ward AJ:

[1] The applicant, which provides a metropolitan bus service to the Cape E Town area, applied as a matter of urgency for the following relief:

Orders:

1.

Condoning the applicant's non-compliance with the forms and time periods stipulated in the Uniform Rules of Court and directing that this matter be heard as one of urgency in terms of rule 6(12).

2.

F That the amount of R94 505 098,24 (being the total of the amounts set out in para 2 of the order of this court issued under case No 21303/2008 on Thursday 15 January 2009 (the court order), together with interest calculated in terms of the provisions of the said paragraph until 20 January 2009), forthwith and in any event before 16:00 on Friday 30 January 2009, be paid to the applicant by G the first and/or second and/or third respondent, jointly and severally, from the National Revenue Fund, in accordance with the provisions of s 3 of the State Liability Act 20 of 1957 (the Act).

3.

Declaring that the second respondent and/or the department of which he is the nominal head pursuant to the provisions of s 2 of the H Act is/are not entitled in law to frustrate, block or refuse to render the necessary assistance to implement and effect the said payments which the first and/or the second and/or third respondent are liable to pay in terms of the previous paragraph.

4.

Directing the second respondent, insofar as he may be requested to I do so by the first and/or third respondent, to forthwith and immediately pay, alternatively, to forthwith and immediately do what is necessary to effect payment of, the said amount referred to in para 2 above from the National Revenue Fund in order to satisfy the court order.

5.

In the alternative to paras 2, 3 and 4 above and only in the event of J payment not occurring on or before 16:00 on Friday 30 January

Binns-Ward AJ

2009, that the first and second respondents are ordered to appear A before this court in person on Monday 2 February 2009 at 10:00 and to furnish the names of each and every individual in their respective departments who would in the ordinary course of business be responsible for remittance of the said amount in order to comply with the provisions of the court order and to furnish full B reasons as to why these individuals have failed to make the said remittance.

6.

To the extent that the above honourable court may deem it necessary and appropriate, granting the applicant condonation in terms of s 3(4) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. C

7.

Further and/or alternative relief.

8.

That the costs of this application, including the costs of two counsel, be paid by the first, second and third respondents jointly and severally, the one to pay the others to be absolved, on the scale of attorney and client, save in the event of the fourth respondent D opposing this application, in which case the costs order is sought against all the respondents jointly and severally on the same scale.

[2] The current proceedings, which were brought before this court on 28 January 2009, are a sequel to an application by applicant under case No 21303/2008 in which certain declaratory relief was sought, which is essentially reflected in the order made in the earlier matter by Motala J, E by agreement between the parties on 15 January 2009, in the terms set out below.

'The following order is made by agreement between the applicant and the first, second, third and fourth respondents pursuant to and with due recognition of the provisions of the State Liability Act, No. 20 of 1957: F

1.

The interim contract number IC68/97 (the contract) entered into between the applicant and the first respondent, as representing the third respondent (of which the fourth respondent has subsequently become the successor in law), has since then by agreement between the parties been extended from time to time and is still legally operative and binding. G

2.

The total amounts due and payable to the applicant in terms of the contract as at the date hereof are:

2.1

R49 234 447,67 as from 1 December 2008 (in respect of which it recorded that the applicant and the fourth respondent will co-operate to determine whether or not an additional amount of R512 946,00 is due and payable); H

2.2

75% of R53 596 991,30, ie R40 197 743,47, as from 17 December 2008; and

2.3

R43 097 421,10 minus R40 197 743,47, ie R2 899 677,63, as from 1 January 2009, together with interest calculated at the rate of 15,5% per annum a tempore morae on the aforesaid amounts. I

3.

The third respondent, represented by the first respondent, is in law liable to make funds available in the aforesaid amounts to the fourth respondent for payment to the applicant, as well as for the amounts due in respect of January to March 2009 as and when those amounts become due, subject to compliance by the applicant with its obligations in terms of the contract. J

Binns-Ward AJ

4.

A The first respondent has to pay the applicant's costs of this application, including the costs of two counsel, as taxed or agreed.

5.

The question of costs between the applicant and the second respondent is fully and finally settled on the basis that the applicant pays the second respondent's party and party costs incurred up until close of business on Tuesday, 13 January 2009, including the B costs of two counsel, as taxed or agreed.'

[3] The aforementioned declaratory relief, obtained with the consent of the first and second respondents, understandably gave rise to an expectation by the applicant that payment of the admitted indebtedness would be forthcoming from government. That expectation has been C disappointed. The second respondent's department has taken the position that there are insuperable legal obstacles standing in the way of its ability to lawfully satisfy the claim at this time. It is that position that precipitated the application brought before me on 28 January 2009. The fourth respondent did not participate in the proceedings; and there is no basis in law to ascribe a separate identity to the Government of the D Republic of South Africa, which was cited as the third respondent, from that of the first and second respondents.

[4] Although the question of urgency was placed in issue on the papers, especially by the second respondent, I was advised at the commencement of the hearing that counsel had decided that the matter could E indeed properly be entertained on an urgent basis. This decision was manifestly correct. The evidence is that if the money sum owed to the applicant is not paid before the end of this month there is every prospect that the applicant will be unable to continue with its operations. The calamitously adverse human and economic consequences of the cessation F of the bus services to the commuting public of greater Cape Town are so obvious as not to require description. The prospect that such consequences might be visited on the community should, I would have thought, have been sufficient consideration for an urgent political or administrative solution to have been sought.

G [5] The matter has instead been put before the court because the second respondent has taken the position that the existing statutory framework ties his hands and prevents him from making payment even if he wished to. The exigencies have necessitated the argument and determination of the issues in circumstances far from ideal, having regard to the importance of the legal and practical matters involved. I have had to prepare H this judgment amidst the other demands of dealing with yesterday's enlisted motion roll. The court's ability to assist the applicant in obtaining payment of the admitted liability is in any event limited because it is well established that, as the law currently stands, any order of the court sounding in money against the government cannot be I executed against the property of the State, as would ordinarily be the case in equivalent litigation between private individuals or entities. This is an incidence of the provisions of s 3 of the State Liability Act 20 of 1957, which provides:

'3 Satisfaction of judgment

No execution, attachment or like process shall be issued against the J defendant or respondent in any such action or proceedings or against

any property of the State, but the amount, if any, which may be A required to satisfy any judgment or order given or made against the nominal defendant or respondent in any such action or proceedings may be paid out of the National Revenue Fund or a Provincial Revenue Fund, as the case may be.'

[6] The unconstitutionality of the inherent inequality before the law that B this statutory situation creates has been acknowledged in the Constitutional Court's judgment in Nyathi v MEC for Department of Health, Gauteng, and Another 2008 (5) SA...